Fisheries Legislation Amendment Act (No. 1) 1999 (Cth)
Contents
[
The Parliament of Australia enacts:
This Act may be cited as the
Fisheries Legislation Amendment Act (No. 1) 1999 .
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) The Parts of Schedule 1 commence on a day or days to be fixed by Proclamation. However, if a Part of that Schedule has not commenced before the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent, the Part commences on the first day after the end of that period.
(3) Schedule 2 commences on a day to be fixed by Proclamation.
(4) Before the Governor‑General makes a Proclamation fixing the day for the commencement of Schedule 2, the Minister must be satisfied that the day is not earlier than the day the Fish Stocks Agreement enters into force for Australia.
(5) If Schedule 2 does not commence under subsection (3) within the period of 6 months beginning on the day on which the Fish Stocks Agreement enters into force for Australia, it commences on the first day after the end of that period.
(6) In this section:
Fish Stocks Agreement means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Insert:
Australian‑flagged boat means a boat that:
(a) is an Australian ship as defined in the
Shipping Registration Act 1981 ; or(b) would be an Australian ship as defined in the
Shipping Registration Act 1981 if it were a ship as defined in that Act.
Insert:
(aa) for the purposes of boarding a boat that is at a place where the officer may board it under paragraph (a) or (b):
(i) require the master to stop the boat at such a place to allow the officer to board it; and
(ii) if the master does not stop the boat as required and the boat is not an Australian‑flagged boat, use any reasonable means consistent with international law to stop the boat (including firing at or into the boat after firing a warning shot, and using a device to prevent or impede use of the system for propelling the boat); and
After “subsection (1)”, insert “(except paragraph (1)(aa))”.
Part 2 — Certain actions not affected by crossing high seas
After “zone”, insert “adjacent to the coast of Australia”.
5 Subsection 4(1) (paragraph (b) of the definition of Australian fishing zone ) After “zone”, insert “adjacent to the coast of the external Territory”.
6 Subsection 4(1) (definition of exclusive economic zone ) Omit “, adjacent to the coast of Australia or the coast of an external Territory”.
Insert:
high seas means the waters that are:
(a) outside the outer limits of the exclusive economic zones of all countries, including Australia and its external Territories; or
(b) inside the outer limits of the exclusive economic zone adjacent to the coast of the Australian Antarctic Territory.
Insert:
(1B) To avoid doubt, the validity of the seizure of a boat by an officer under paragraph (1)(g) is not affected merely because:
(a) the boat is brought or taken under escort to a place; and
(b) the boat had to travel on the high seas to reach the place.
(1C) To avoid doubt, paragraphs (1)(k) and (l) allow an officer to require the master of a boat to bring or take the boat to a specified place and remain in control of the boat there even if it is necessary for the boat to travel on the high seas to reach the place.
(1D) To avoid doubt, paragraph (1)(m) allows an officer to bring a boat to a place and remain in control of it there even if it is necessary for the boat to travel on the high seas to reach the place.
Insert:
(5A) Strict liability applies to subsections (2) and (5).
Omit “125”, substitute “250”.
Add:
(2) Strict liability applies to subsection (1).
Note: The heading to section 99 is altered by adding at the end “
Insert:
(2A) Strict liability applies to subsection (2).
Note: The heading to section 100 is altered by adding at the end “
—strict liability offence ”.
Insert:
100A Offence of using foreign boat for fishing in AFZ
(1) A person is guilty of an offence if:
(a) the person intentionally uses a boat; and
(b) the boat is a foreign boat and the person is reckless as to that fact; and
(c) the use of the boat is for commercial fishing and the person is reckless as to that fact; and
(d) the boat is at a place in the AFZ at the time of the use and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 5,000 penalty units.
(3) The offence is an indictable offence.
(4) Subsection (1) does not apply if:
(a) a foreign fishing licence is in force authorising the use of the boat at the place; or
(b) the boat is a Treaty boat and a Treaty licence is in force in respect of the boat authorising the use of the boat at the place.
(5) The only burden of proof that a defendant bears in respect of paragraph (4)(a) or (b) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
Insert:
(2A) Strict liability applies to subsection (2).
Note: The heading to section 101 is altered by adding at the end “
—strict liability offence ”.
Insert:
101A Offence of having foreign boat equipped for fishing
(1) A person is guilty of an offence if:
(a) the person intentionally has in his or her possession or charge a boat; and
(b) the boat is a foreign boat and the person is reckless as to that fact; and
(c) the boat is equipped with nets, traps or other equipment for fishing and the person is reckless as to that fact; and
(d) the boat is at a place in the AFZ and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 5,000 penalty units.
(3) The offence is an indictable offence.
(4) Subsection (1) does not apply if:
(a) the use or presence of the boat at the place is authorised by a foreign fishing licence or port permit; or
(b) a Treaty licence is in force in respect of the boat; or
(c) the boat’s nets, traps and other equipment for fishing are stored and secured and the boat is at the place in accordance with the approval of AFMA given under, and in accordance with, the regulations made for the purposes of paragraph 101(1)(c); or
(d) the boat’s nets, traps and other equipment for fishing are stored and secured and the boat is travelling through the AFZ from a point outside the AFZ to another point outside the AFZ by the shortest practicable route.
(5) The only burden of proof that a defendant bears in respect of paragraph (4)(a), (b), (c) or (d) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
(1) The amendments made by this Part apply to things occurring after its commencement.
(2) Paragraph 101A(4)(c) of the
Fisheries Management Act 1991 applies whether the regulations mentioned in the paragraph were made or commenced before or after the commencement of this Part.
Insert:
(1) A person (the
supporter ) is guilty of an offence if:
(a) the supporter intentionally uses a boat (the
support boat ); and(b) the support boat is outside the AFZ but not in the territorial sea of a foreign country, and the supporter is reckless as to that fact; and
(c) the use of the support boat is directly in support of, or in preparation for:
(i) the use of a foreign boat (other than the support boat) by a person in the AFZ in contravention of section 100 or 100A; or
(ii) a person having possession or charge of a foreign boat (other than the support boat) in the AFZ in contravention of section 101 or 101A;
and the supporter is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 5,000 penalty units.
(3) To avoid doubt, an officer outside the AFZ (but not in the territorial sea of a foreign country) may exercise powers under section 84 in relation to the support boat and a person on the support boat whom the officer has reasonable grounds to believe has committed an offence against this section if:
(a) one or more officers have pursued without interruption from a place in the AFZ to a place outside the AFZ:
(i) the support boat; or
(ii) a foreign boat that an officer has reasonable grounds to believe was being used by, or was in the possession or charge of, a person committing an offence against section 100, 100A, 101 or 101A with support from the support boat; and
(b) the powers are exercised at or immediately after the conclusion of the chase.
(4) For the purposes of paragraph (3)(a), a pursuit of a boat is not interrupted merely because some or all of the officers pursuing the boat lose sight of it or lose trace of it on a radar or other sensing device.
(5) An officer may exercise powers under paragraph 84(1)(a) in relation to the support boat outside the AFZ as if the support boat were in the AFZ.
(6) This section applies to all persons (including foreigners) and all boats (including foreign boats), despite sections 7 and 8.
Insert:
(ga) seize all or any of the following that are forfeited to the Commonwealth under section 106A or that the officer has reasonable grounds to believe are forfeited under that section:
(i) a boat;
(ii) a net, trap or other equipment;
(iii) fish; and
Add:
Note: Subdivision C of Division 6 deals with notice of seizure of things under paragraph 84(1)(ga).
Insert:
Omit “13, 95 (not being an offence against that section mentioned in subsection (2)), 99 or 100”, substitute “13 or subsection 95(5)”.
Omit “95, being an offence arising out of the person having in his or her possession or in his or her charge a boat for taking fish, or of an offence against section 101,”.
Insert:
The following things are forfeited to the Commonwealth:
(a) a foreign boat used in an offence against:
(i) subsection 95(2); or
(ii) section 99; or
(iii) section 100; or
(iv) section 100A; or
(v) section 101; or
(vi) section 101A;
(b) a boat used in an offence against section 101B as a support boat (as defined in that section);
(c) a net or trap, or equipment, that:
(i) was on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or
(ii) was used in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B;
(d) fish:
(i) on a boat described in paragraph (a) or (b) at the time of the offence mentioned in that paragraph; or
(ii) involved in the commission of an offence against subsection 95(2) or section 99, 100, 100A, 101, 101A or 101B.
Note: Paragraph 84(1)(ga) allows an officer to seize a thing that is forfeited under this section or that the officer has reasonable grounds to believe is forfeited.
This Subdivision sets out rules about a thing that an officer seizes under paragraph 84(1)(ga) because:
(a) the thing is forfeited under section 106A because:
(i) it was, or was on, a boat described in that section at the time of an offence described in that section; or
(ii) it was used or involved in the commission of an offence described in that section and involving a boat; or
(b) the officer has reasonable grounds to believe the thing is forfeited under section 106A because the officer has reasonable grounds to believe the thing:
(i) was, or was on, a boat described in that section at the time of an offence described in that section; or
(ii) was used or involved in the commission of an offence described in that section and involving a boat.
Giving notice
(1) The officer must give written notice of the seizure of the thing to the person:
(a) who was the master of the boat immediately before the seizure; or
(b) whom the officer has reasonable grounds to believe was the master of the boat immediately before the seizure.
However, if the officer cannot conveniently give the notice to the person in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing, unless the thing is a fish.
Content of notice
(2) The notice must:
(a) identify the thing; and
(b) state that the thing has been seized; and
(c) state that the thing will be condemned as forfeited unless the owner of the thing or the person who had possession, custody or control of the thing immediately before it was seized gives the Managing Director of AFMA within 30 days a written claim in English for the thing; and
(d) specify the address of the Managing Director of AFMA.
Note: Section 106E condemns the thing if it is not claimed within 30 days. Section 106G condemns the thing if it is claimed but the claimant does not get a court order supporting the claim.
(1) On behalf of the Commonwealth, AFMA may cause the thing to be disposed of or destroyed if it is a boat and AFMA is satisfied that:
(a) the boat is unseaworthy; or
(b) the boat poses a serious risk to safety, public health or quarantine; or
(c) the boat poses a serious risk of damage to other property or the environment; or
(d) the expenses of custody and maintenance of the boat between its seizure and condemnation are likely to be greater than its value.
(2) If AFMA causes the boat to be disposed of, it may cause the disposal to be made subject to specified conditions.
(3) The table lists some other provisions relevant to dealing with things before they are condemned as forfeited to the Commonwealth:
1 | Paragraph 84(1)(t) | Officer’s power to dispose of seized fish |
2 | Section 88 | Release of seized property |
(1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 30 days after notice of seizure of the thing has been given under section 106C, unless:
(a) within the 30 days the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Managing Director of AFMA a written claim for the thing; and
(b) the claim is in English; and
(c) the claim sets out an address for service on the person making the claim.
Note: Section 106H requires things condemned as forfeited to be dealt with in accordance with the Minister’s directions.
(2) A person may claim the thing even if it is disposed of or destroyed before or after the claim.
(1) If the thing is claimed as described in section 106E:
(a) an officer may retain possession of the thing without starting any proceedings for the condemnation of the goods; and
(b) the Managing Director of AFMA may give the claimant a written notice stating that the thing will be condemned if the claimant does not institute proceedings against the Commonwealth within 2 months:
(i) to recover the thing; or
(ii) for a declaration that the thing is not forfeited.
Note 1: An officer may retain possession even if the Managing Director of AFMA does not give notice. If so, the claimant will be able to recover the thing only if it is released under section 88 or a court orders its release to the claimant.
Note 2: If the Managing Director does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings.
(2) The Managing Director of AFMA may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the Managing Director. If the Managing Director does so, the letter is taken to be properly addressed for the purposes of section 29 of the
Acts Interpretation Act 1901 .(3) Subsection (2) does not limit the ways in which the notice may be given.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given.(4) To avoid doubt, the Managing Director of AFMA may give the notice even if the thing has been released under section 88.
Application
(1) This section applies if the Managing Director of AFMA gives the claimant a notice under section 106F about instituting proceedings:
(a) to recover the thing; or
(b) for a declaration that the thing is not forfeited.
Condemnation if proceedings not started within 2 months
(2) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 2 months after the notice is given if the claimant does not institute the proceedings within that period.
Condemnation at end of proceedings started within 2 months
(3) By force of this subsection, the thing is condemned as forfeited to the Commonwealth at the end of the proceedings that are instituted by the claimant against the Commonwealth within 2 months of the claimant being given the notice if, at the end of the proceedings, there is not:
(a) an order for the claimant to recover the thing; or
(b) an order for the Commonwealth to pay the claimant the proceeds of the sale of the thing if it has been sold before the end of the proceedings; or
(c) an order for the Commonwealth to pay the claimant the market value of the thing at the time it was disposed of (except by sale) or destroyed, if it has been disposed of (except by sale) or destroyed before the end of the proceedings; or
(d) a declaration that the thing is not forfeited.
End of proceedings that go to judgment
(4) For the purposes of subsection (3), if the proceedings go to judgment, they end:
(a) at the end of the period for lodging an appeal against the judgment, if no appeal is lodged within that period; or
(b) when the appeal lapses or is finally determined, if an appeal is lodged against the judgment within that period.
Proceedings relating to thing that has been disposed of
(5) Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.
Order for payment if thing has been disposed of or destroyed
(6) If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court must order the Commonwealth to pay the person an amount equal to:
(a) the proceeds of the sale of the thing, if it has been sold before the end of the proceedings; or
(b) the market value of the thing at the time it was disposed of (except by sale) or destroyed, if it has been disposed of (except by sale) or destroyed before the end of the proceedings.
If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Minister.
Insert:
The amendments of section 106 of the
Fisheries Management Act 1991 made by this Part, and Subdivisions B and C of Division 6 of Part 6 of that Act, apply in relation to offences committed after the commencement of this Part.
Add:
(1) The seizure, detention or forfeiture of a boat under this Act has effect despite any or all of the following events:
(a) the arrest of the boat under the
Admiralty Act 1988 ;(b) the making of an order for the sale of the boat by a court in proceedings brought under the
Admiralty Act 1988 ;(c) the sale of the boat under an order made by a court in proceedings brought under the
Admiralty Act 1988 .(2) Subsection (1) has effect regardless of whether the seizure, detention or forfeiture, or the event that was the basis for the seizure, detention or forfeiture, occurred before or after the arrest, making of the order or sale (as appropriate).
Section 108A of the
Fisheries Management Act 1991 applies to boats arrested or ordered to be sold as a result of proceedings commenced under theAdmiralty Act 1988 after the commencement of this Part.
Insert:
(ba) ensuring that:
(i) the exploitation in the Australian fishing zone (as defined in the
Fisheries Management Act 1991 ) and the high seas of fish stocks in relation to which Australia has obligations under international agreements; and(ii) related activities;
are carried on consistently with those obligations; and
Insert:
(aa) to devise and implement management regimes that:
(i) relate to fishing for fish stocks in relation to which Australia has obligations under international agreements; and
(ii) are consistent with those obligations;
Insert:
(ga) to liaise and co‑operate with overseas and international bodies on matters relating to global, regional or subregional fisheries management organisations or arrangements;
Insert:
(ma) to take action in accordance with international law to deter the use of vessels on the high seas for activities that contravene or reduce the effectiveness of measures that are for the conservation and management of fish stocks and are established by:
(i) a subregional or regional fisheries management organisation that Australia is a member of; or
(ii) a subregional or regional fisheries management arrangement that Australia participates in;
Add:
(2) The paragraphs of subsection (1) do not limit one another.
Insert:
and (c) ensuring that conservation and management measures in the AFZ and the high seas implement Australia’s obligations under international agreements that deal with fish stocks;
Insert:
Australian regional management measure means a regional management measure established by a regional organisation or arrangement involving Australia.
Insert:
Fish Stocks Agreement means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, a copy of the English text of which is set out in Schedule 2.
Insert:
FSA boat means a boat of the nationality of a foreign country that is party to the Fish Stocks Agreement.
Insert:
highly migratory fish stock has the same meaning as in the Fish Stocks Agreement.
Insert:
regional management measure means a measure established by a regional organisation or arrangement to conserve or manage one or more species of living marine resources (within the meaning of the Fish Stocks Agreement).
Insert:
regional organisation or arrangement means:
(a) a subregional or regional fisheries management organisation within the meaning of the Fish Stocks Agreement; or
(b) a subregional or regional fisheries management arrangement within the meaning of the Fish Stocks Agreement.
Insert:
seriously violate an Australian regional management measure in relation to a boat has the meaning given by subsection 87E(4).
Insert:
straddling fish stock has the same meaning as in the Fish Stocks Agreement.
Insert:
territorial sea has the meaning given by subsection 3(1) of theSeas and Submerged Lands Act 1973 .
Omit “the Schedule”, substitute “Schedule 1”.
Add:
Note: Some of the sections of this Act having or dealing with extra‑territorial operation outside the AFZ are sections 8, 13, 14, 15, 87, 87A, 87B, 87D, 87G, 87H, 105A, 105B, 105C, 105E and 105F.
Repeal the subsection, substitute:
(3) In relation to so much of a managed fishery as is outside the AFZ, this Act applies to Australian boats and all persons (including foreigners) on Australian boats. This subsection does not limit subsection (2).
(4) Subsections (2) and (3) do not limit the extra‑territorial operation of this Act.
Add:
(4) This section does not limit the extra‑territorial operation of this Act.
After “management”, insert “or temporary order”.
Add:
Boat involved in contravening regional management measure
(1) AFMA must not authorise under this Part the use of an Australian‑flagged boat for fishing on the high seas for a straddling fish stock or highly migratory fish stock during the period specified in subsection (2), if:
(a) a court has convicted a person of an offence described in subsection (3) involving the use of the boat; and
(b) the court has ordered the person to pay a fine for the offence (whether or not the person has also been sentenced to imprisonment for the offence); and
(c) the court has not ordered the forfeiture of the boat.
Period for which AFMA must not authorise use of boat
(2) The period starts when the person is ordered to pay the fine and ends when one of the following events occurs:
(a) the person pays the fine;
(b) a penalty is imposed on the person for failure to pay the fine;
(c) the court orders the forfeiture of the boat (for the offence or another offence);
(d) the conviction of the person for the offence for which the person was ordered to pay the fine is quashed.
Offences that prevent AFMA authorising use of boat
(3) Subsection (1) limits authorisation of the use of a boat involved in any of the following offences:
(a) an offence against subsection 95(5) constituted by one of the following acts or omissions that contravenes a condition of a fishing concession or scientific permit that authorises fishing for a conserved fish stock on the high seas or contravenes a provision of a temporary order relating to fishing for a conserved fish stock on the high seas:
(i) fishing for the conserved fish stock at a particular time, in a particular place or with particular equipment;
(ii) failing to maintain accurate records of catch;
(iii) failing to provide an accurate return of fish taken, carried, transhipped or processed;
(iv) taking, carrying, transhipping or processing more fish than authorised by the concession, permit or order;
(v) changing or hiding the markings of the boat;
(b) an offence against section 105A involving a fish from a conserved fish stock and a boat;
(c) an offence against section 105B involving a boat equipped for fishing for a conserved fish stock;
(d) an offence against section 107 relating to a document, statement, return or information about catch of a conserved fish stock;
(e) an offence against a prescribed provision of this Act or the regulations that is constituted by a prescribed act or omission relating to a conserved fish stock.
What is a conserved fish stock ?
(4) In this section:
conserved fish stock means:
(a) a straddling fish stock covered by a regional management measure; or
(b) a highly migratory fish stock covered by a regional management measure.
Insert:
(5C) A plan of management for a fishery affecting straddling fish stocks, highly migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish Stocks Agreement) must set out stock‑specific reference points (within the meaning of that Agreement) for the stocks.
(1) Subsection 17(5C) of the
Fisheries Management Act 1991 applies to all plans of management, whether notice relating to them is published in theGazette under section 19 of that Act before or after the commencement of this Schedule.(2) However, in the 12 months immediately after the commencement of this Schedule, a plan of management is not invalid merely because it does not comply with that subsection, if:
(a) the plan is for a fishery affecting straddling fish stocks, highly migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish Stocks Agreement); and
(b) a notice relating to it was published in the
Gazette under section 19 of that Act before the commencement of this Schedule.
Add:
Note: Sections 42 and 42A also impose conditions on statutory fishing rights.
Omit “and (1C)”, substitute “, (1C) and (1D)”.
Omit “subsection (1C)”, substitute “subsections (1C) and (1D)”.
Insert:
(1D) If subsection 16A(1) prohibits AFMA from authorising a use of a boat for a period described in subsection 16A(2), the permit does not authorise the use of the boat during the period.
Note: Subsection 16A(1) prohibits AFMA from authorising the use of a boat to fish on the high seas for a straddling fish stock or a highly migratory fish stock if the boat has been used in the commission of certain offences and the penalties for those offences have not been complied with.
Add:
Note: Sections 42 and 42A also impose conditions on fishing permits.
Add:
Note: Section 42A also imposes a condition on some scientific permits.
Add:
; or (d) both of the following conditions are met:
(i) the concession authorises the use of a boat for fishing for a fish stock covered by a regional organisation or arrangement;
(ii) Australia is not involved in the regional organisation or arrangement and has not agreed to apply regional management measures established by the regional organisation or arrangement.
Add:
; or (d) the course, or position at regular intervals, inside or outside the outer limits of the AFZ of boats to which the fishing concessions relate.
Insert:
It is a condition of a fishing concession, or scientific permit, authorising the use of an Australian‑flagged boat outside the AFZ that the master of the boat:
(a) facilitate boarding of the boat; and
(b) co‑operate with inspection of the boat;
by officials of a foreign country acting in accordance with the Fish Stocks Agreement.
Add:
(iii) the maintenance of straddling fish stocks, highly migratory fish stocks or ecologically related fish stocks (within the meaning of the Fish Stocks Agreement) before a plan of management is determined, amended or revoked; or
Add:
(iii) that is the subject of an international agreement and occurs outside the AFZ; or
Omit “3”, substitute “6”.
The amendment of paragraph 43(4)(c) made by this Schedule applies to temporary orders made after the commencement of this Schedule.
Insert:
(1) Paragraphs 84(1)(aa), (a), (c), (n), (o), (p) and (r) apply in relation to an FSA boat on the high seas in the same way as they apply in relation to a boat in the AFZ, if the officer mentioned in subsection 84(1) has reasonable grounds to believe that:
(a) the boat has been used in the AFZ or Australia or an external Territory in contravention of section 95; and
(b) the boarding of the boat has been authorised by the appropriate authority of the country of nationality of the boat.
(2) This section does not limit section 87.
(1) The provisions of section 84 listed in the table (and the other provisions of that section so far as they relate to the listed provisions) apply, with the modifications (if any) set out in the table, to:
(a) an FSA boat equipped for fishing that is on the high seas in an area covered by a regional organisation or arrangement involving Australia; and
(b) the master of the boat; and
(c) a person on the boat; and
(d) a thing on the boat.
1 | Paragraph 84(1)(aa) | None |
2 | Paragraph 84(1)(a) | Applies as if:
|
3 | Paragraph 84(1)(c) | None |
4 | Paragraph 84(1)(fa) | Applies as if it allowed the officer to require the master of a boat to give the officer such help as the officer reasonably requires for the purpose of measuring equipment, regardless of whether a fishing concession is in force |
5 | Paragraph 84(1)(g) | Applies as if:
|
6 | Paragraph 84(1)(j) | Applies: (a) subject to section 87E; and
|
7 | Paragraph 84(1)(k) | Applies: (a) subject to section 87E; and
|
8 | Paragraph 84(1)(l) | Applies: (a) subject to section 87E; and
|
9 | Paragraph 84(1)(m) | Applies: (a) subject to section 87E; and
|
10 | Paragraph 84(1)(n) | Applies as if a reference to a fishing concession included a reference to an authorisation (however described) by a foreign country to use the boat for fishing on the high seas |
11 | Paragraph 84(1)(o) | None |
12 | Paragraph 84(1)(p) | Applies as if there were a fishing concession under this Act in force in relation to the boat |
13 | Paragraph 84(1)(q) | Applies as if a reference to contravention of this Act were a reference to an offence against section 105E or 105F |
14 | Paragraph 84(1)(r) | Applies as if a reference to an offence against this Act were a reference to an offence against section 105E or 105F |
15 | Subsection 84(1A) | Applies as if the reference to the owner of the boat were a reference to the master of the boat at the time the officer believes the offence against section 105E or 105F occurred |
Note: Section 87F imposes certain requirements if an officer exercises powers on an FSA boat under section 84 as applied by this section.
(2) This section does not limit the extra‑territorial operation that section 84 has apart from this section, except in relation to offences against section 105E or 105F.
FSA boats that have been fishing on the high seas
(1) This section operates in relation to an FSA boat in the AFZ, Australia or an external Territory, but only if:
(a) the FSA boat is equipped for fishing; and
(b) an officer has reasonable grounds to believe that the boat is on a fishing trip within the meaning of the Fish Stocks Agreement; and
(c) the officer has reasonable grounds to believe that, in the course of the fishing trip:
(i) the boat has been used on the high seas in contravention of an Australian regional management measure; and
(ii) the boat entered the AFZ after the contravention.
Note: Section 105E makes it an offence to use an FSA boat in certain areas of the high seas in contravention of a regional management measure.
Officers’ powers
(2) Subsection 87B(1) applies in relation to the boat (and to its master, a person on it and a thing on it) in the same way as it applies to a boat, master, person and thing described in paragraphs 87B(1)(a), (b), (c) and (d).
Note 1: This gives an officer the powers described in section 84 (as modified by section 87B) in relation to the boat, its master, a person on it and a thing on it.
Note 2: Section 87F imposes certain requirements if an officer exercises powers on an FSA boat under section 84 as applied by this section.
Modifications of powers
(3) However, subsection 87B(1) applies as if the following paragraphs in the column headed “Modifications” of the table in that subsection were omitted:
(a) paragraph (a) in item 2 of the table;
(b) paragraph (c) in item 7 of the table.
Relationship with section 84
(4) This section does not prevent an officer from exercising powers under section 84 as it applies of its own force, except in relation to a contravention of, or offence against, section 105E or 105F.
FSA boat ordered by officer to foreign country or waters
(1) This section operates in relation to an FSA boat that:
(a) is at a place in a foreign country or in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country; and
(b) was brought or taken to the place:
(i) as a result of a requirement made by an officer under paragraph 84(1)(k) or (l) as it applies because of section 87B or 87C; or
(ii) by an officer under paragraph 84(1)(m) as it applies because of section 87B or 87C.
Note: Under section 87E, the boat can be brought, or be required to be brought or taken, to a place in a foreign country or a foreign country’s waters only if the country of nationality of the boat:
(a) has not met its international obligations to enforce measures against illegal fishing on the high seas from the boat; or
(b) has authorised the boat being brought or taken to the place for investigation or enforcement action.
Officers’ powers
(2) Subsection 87B(1) applies in relation to the boat (and to its master, a person on it and a thing on it) in the same way as it applies to a boat, master, person and thing described in paragraphs 87B(1)(a), (b), (c) and (d).
Note 1: This gives an officer the powers described in section 84 (as modified by section 87B) in relation to the boat, its master, a person on it and a thing on it.
Note 2: Section 87F imposes certain requirements if an officer exercises powers on an FSA boat under section 84 as applied by this section.
Modification of powers
(3) However, subsection 87B(1) applies as if paragraph (a) in the column headed “Modifications” of item 2 of the table in that subsection provided that the reference in paragraph 84(1)(a) to a boat in the AFZ were a reference to an FSA boat in:
(a) a foreign country; or
(b) the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country.
Relationship with section 84
(4) This section does not limit the extra‑territorial operation that section 84 has apart from this section, except in relation to offences against section 105E or 105F.
(1) An officer must not do any of the following unless the requirements of subsection (2) are met:
(a) seize, detain or remove a thing that is, or is on, an FSA boat under paragraph 84(1)(g) as it applies because of section 87B, 87C or 87D; or
(b) arrest without warrant a person on a boat under paragraph 84(1)(j) as it applies because of section 87B, 87C or 87D; or
(c) require the master of an FSA boat to remain in control of a boat at a place in Australia or a Territory under subparagraph 84(1)(k)(i) as it applies because of section 87C; or
(d) require the master of an FSA boat to bring the boat to a place under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) as it applies because of section 87B, 87C or 87D; or
(e) bring an FSA boat to a place under paragraph 84(1)(m) as it applies because of section 87B, 87C or 87D.
(2) The requirements are that:
(a) an officer must believe on reasonable grounds that a person has committed an offence against section 105E or 105F involving the use of the boat; and
(b) an officer must have notified the appropriate authority of the country of nationality of the boat of that belief; and
(c) the officer taking the action described in subsection (1) must reasonably believe that either:
(i) the appropriate authority of the country of nationality of the boat has authorised the action (specifically or in general terms); or
(ii) the circumstances described in subsection (3) exist.
(3) The circumstances are that:
(a) the country of nationality of the boat has not acted in accordance with its international obligations arising from the notification; and
(b) an officer has reasonable grounds to believe that a person has seriously violated an Australian regional management measure in relation to the boat.
Note: Paragraph 6 of Article 21 of the Fish Stocks Agreement requires the country of nationality of the FSA boat to do certain things if it is notified.
(4) A person
seriously violates an Australian regional management measure in relation to a boat if:
(a) the person commits an offence against section 105E or 105F by:
(i) using the boat to fish; or
(ii) failing to maintain accurate records of fish taken using the boat; or
(iii) failing to provide accurate information about fish taken, carried, transhipped or processed using the boat; or
(iv) taking, carrying, transhipping or processing fish using the boat without an authorisation (however described) to do so; or
(v) taking, carrying, transhipping or processing more fish using the boat than the person is authorised to do; or
(vi) changing or hiding the markings of the boat; or
(vii) a prescribed act or omission, or a prescribed series of acts or omissions, relating to the boat; or
(b) the person conceals, tampers with or disposes of evidence of an offence against section 105E or 105F involving the boat; or
(c) the person commits an offence relating to the boat against a prescribed provision of this Act or the regulations.
Overview
(1) This section applies if an officer on an FSA boat exercises powers under section 84 as it applies because of section 87B, 87C or 87D.
Showing documents to master
(2) When, or as soon as practicable after, an officer first exercises a power on the boat relating to an offence against section 105E or 105F in relation to an Australian regional management measure, an officer must show the master of the boat:
(a) a copy of the text of the measure; and
(b) a copy of the provisions of this Act and the regulations that relate to the measure.
Giving notice to flag state for boat
(3) When, or as soon as practicable after, an officer first exercises a power on the boat, an officer must give notice to the country of nationality that an officer has boarded and is inspecting the boat.
Leaving quickly after finding no evidence
(4) The officer must leave the boat as soon as reasonably practicable after exercising the powers on the boat and finding no evidence that a person has seriously violated an Australian regional management measure in relation to the boat.
Giving report of exercise of powers
(5) After one or more officers have finished exercising powers on the boat, an officer must give the master and the country of nationality of the boat a report of the exercise of the powers on the boat during the period while one or more officers were on the boat.
Report to note master’s statements
(6) The report must include a note of any objection or statement the master of the boat asked an officer to include in the report.
Minimising duplication
(7) This section does not require the master to be shown a document more than once, or more than one notice or report to be given, in relation to the exercise of a power or powers during the period for which one or more officers are on the boat (even if the same officer is not on the boat throughout the period).
Officers to comply with regulations
(8) The officer must comply with any other requirements prescribed by the regulations in relation to the exercise of the powers.
(1) Section 84 applies in relation to an Australian‑flagged boat that is outside the AFZ (and the master of the boat, a person on the boat and a thing on the boat) in the same way as that section applies to a boat that is in the AFZ, Australia or an external Territory (and the master of the boat, a person on the boat and a thing on the boat).
(2) This section does not limit:
(a) the extra‑territorial operation that section 84 has apart from this section; or
(b) section 87.
Power to board and inspect
(1) An officer may board and inspect a boat on the high seas that is equipped for fishing if the officer has reasonable grounds to believe that the boat does not have a nationality.
Note: If the officer discovers after boarding that the boat is in fact an FSA boat or an Australian‑flagged boat, section 87B or 87G will apply section 84 to allow the officer to exercise powers on the boat.
Producing identification for master to inspect
(2) The officer must produce written identification of the officer for the master of the boat to inspect as soon as practicable after the officer has boarded. If the officer does not do so, he or she must not remain on the boat.
Giving report of exercise of powers
(3) After one or more officers have finished inspecting the boat, an officer must give the master of the boat a report of the inspection during the period while one or more officers were on the boat.
Report to note master’s statements
(4) The report must include a note of any objection or statement the master of the boat asked an officer to include in the report.
Minimising duplication
(5) This section does not require:
(a) more than one report to be given in relation to the period for which one or more officers are on the boat (even if the same officer is not on the boat throughout the period); or
(b) a report to be given to the master if section 87F requires a report to be given to the master.
Note: Section 87F will require a report to be given to the master if the boat is in fact an FSA boat (despite there having been reasonable grounds to believe it was without nationality).
Force to be used only in limited circumstances
(1) An officer must not use force in the exercise of the officer’s powers under a provision of section 84 (as it applies of its own force or because of section 87A, 87B, 87C, 87D or 87G) or under section 87H, unless it is necessary to do so:
(a) to ensure the safety of an officer; or
(b) to overcome obstruction of an officer in the exercise of that officer’s powers.
Force used must be reasonable
(2) The force used must not be more than is reasonably required for the relevant purpose described in paragraph (1)(a) or (b).
After “section 84”, insert “(as it applies of its own force or because of section 87, 87A, 87B, 87C, 87D or 87G)”.
Insert:
(1) This section applies to an FSA boat that is under the control of an officer (the
controlling officer ) because of the exercise of a power under section 84 by an officer (whether the controlling officer or not) who is or has been investigating whether the boat has been used in an offence against section 105E or 105F.(2) The controlling officer must release the boat to the appropriate authority of the country of nationality of the boat if the officer is satisfied that the appropriate authority has requested Australia or AFMA to release the boat to the authority.
(3) The controlling officer must not impose any conditions under section 88 on the release of the boat.
(4) For the purposes of subsection (1), it does not matter whether the power was exercised under section 84 as it applies of its own force or because of section 87B, 87C or 87D.
(5) This section has effect despite any other law of the Commonwealth, a State or a Territory.
Insert:
(1AA) Paragraphs (1)(d), (e) and (f) (and the rest of this section so far as it relates to those paragraphs) apply whether the contravention occurs inside or outside the outer limits of the AFZ.
Insert:
(1A) A court may order a person (including a foreigner) not to be on any Australian‑flagged boat outside the AFZ for the purposes of commercial fishing during a period specified by the court if the court convicted the person of an offence:
(a) involving an Australian‑flagged boat and a contravention of paragraph 95(1)(d), (e) or (f); or
(b) against section 105A, 105B or 105C (which deal with an Australian‑flagged boat beyond the AFZ).
Omit “such an order”, substitute “an order made under subsection (1) or (1A)”.
Omit “, despite sections 7 and 8”.
After “section 84”, insert “(as it applies of its own force or because of section 87, 87A, 87B, 87C, 87D or 87G)”.
Repeal the subsection, substitute:
(1) A person is guilty of an offence if:
(a) the person is the master of a foreign boat; and
(b) the person intentionally lands or tranships (or causes to be landed or transhipped) fish from the boat at a place; and
(c) the place is in Australia or an external Territory and the person is reckless as to that fact.
(1A) The offence is punishable on conviction by a fine not more than 500 penalty units.
(1B) Subsection (1) does not apply if:
(a) the fish were landed or transhipped in accordance with:
(i) the terms of a foreign fishing licence; or
(ii) an entry under paragraph 21(2)(b) of the
Torres Strait Fisheries Act 1984 ; or(iii) the terms of an approval given by the Minister; or
(b) the person has a reasonable excuse for causing the fish to be landed or transhipped.
(1C) The Minister may give a person written approval of the landing or transhipment of fish. The approval may be expressed to be subject to conditions.
(1D) The conditions to which an approval may be expressed to be subject include:
(a) a condition that the person (the
approved person ) to whom the approval relates notify a specified person of the landing or transhipment; and(b) a condition that the approved person give a specified person a return of the species and quantity of fish landed or transhipped; and
(c) a condition that the landing or transhipment occur under the supervision of a specified person.
This does not limit subsection (1C).
(1E) The only burden of proof that a defendant bears in respect of subsection (1B) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
Insert:
(1) A person is guilty of an offence if:
(a) the person intentionally has a fish in his or her possession or control; and
(b) the fish is on an Australian‑flagged boat on the high seas and the person is reckless as to that fact; and
(c) the taking of the fish is not authorised by a fishing concession or scientific permit and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 500 penalty units.
(1) A person is guilty of an offence if:
(a) a person intentionally has in his or her possession or charge an Australian‑flagged boat; and
(b) the boat is equipped with nets, traps or other equipment for fishing and the person is reckless as to that fact; and
(c) the boat is at a place on the high seas and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 500 penalty units.
(3) Subsection (1) does not apply if:
(a) the person holds a fishing concession or scientific permit authorising the boat to be at that location equipped with nets, traps or other equipment for fishing; or
(b) the person is acting on behalf of the holder of such a concession or permit; or
(c) the boat is engaged solely in the ordinary course of trade of carrying cargo between:
(i) Australia and a foreign country; or
(ii) Australia and an external Territory; or
(iii) an external Territory and a foreign country; or
(iv) 2 external Territories; or
(d) the person has a reasonable excuse.
Note: Even if subsection (1) does not apply because the person holds, or acts for the holder of, a fishing concession or scientific permit, the person will commit an offence under section 95 if the person contravenes a condition of the concession or permit.
(4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
(1) A person is guilty of an offence if:
(a) the person intentionally uses an Australian‑flagged boat for fishing; and
(b) the boat is in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of a foreign country and the person is reckless as to that fact; and
(c) the law of the country requires the person to have an authorisation (however described) given under the law of the country for the fishing and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 500 penalty units.
(3) Subsection (1) does not apply if the person has an authorisation (however described) issued under the law of the country for the fishing.
(4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
(5) If the person has been convicted or acquitted in the foreign country of an offence involving the fishing, the person cannot be convicted of an offence under this section involving the fishing.
Boarding boats suspected of illegal fishing in foreign waters
(1) On behalf of Australia, AFMA may authorise officials of a foreign country that is party to the Fish Stocks Agreement to board and inspect an Australian‑flagged boat on the high seas if:
(a) AFMA or Australia has received a request from the appropriate authority of the foreign country for that country’s officials to board and inspect the boat; and
(b) AFMA has reasonable grounds to believe that the boat has been used for fishing in the exclusive economic zone, territorial sea, archipelagic waters (as defined in the United Nations Convention on the Law of the Sea) or internal waters of the foreign country without an authorisation (however described) given under the law of that country; and
(c) AFMA is satisfied that the boarding and inspection will be carried out in accordance with the Fish Stocks Agreement.
Investigating breach of regional management measures
(2) On behalf of Australia, AFMA may authorise an authority of a foreign country that is party to the Fish Stocks Agreement to investigate an alleged contravention of a regional management measure involving an Australian‑flagged boat if:
(a) an official of the foreign country has boarded the boat on the high seas in an area covered by a regional organisation or arrangement; and
(b) the appropriate authority of the foreign country has notified AFMA or Australia that the official has reasonable grounds for believing that the boat has been used in contravention of the regional management measure; and
(c) AFMA is satisfied that the investigation will be carried out in accordance with the Fish Stocks Agreement.
Revocation of authorisation by AFMA
(3) AFMA may revoke an authorisation AFMA has given under this section.
Form of authorisation or revocation by AFMA
(4) An authorisation, or revocation of an authorisation, by AFMA must be in writing or by electronic transmission. However, an authorisation or revocation cannot be made by electronic transmission of an oral message.
Enforcement action for breach of regional management measures
(5) On behalf of Australia, the Attorney‑General may authorise in writing an authority of a foreign country to take specified action to enforce a law of the foreign country against a contravention of a regional management measure on the high seas involving an Australian‑flagged boat if:
(a) AFMA has authorised an authority of the foreign country under subsection (2) to investigate the alleged contravention; and
(b) the appropriate authority of the foreign country has communicated the results of the investigation to Australia; and
(c) the Attorney‑General is satisfied that the action will be taken in accordance with the Fish Stocks Agreement.
Revocation of authorisation by Attorney‑General
(6) The Attorney‑General may revoke in writing an authorisation he or she has given under this section.
(1) A person is guilty of an offence if:
(a) the person intentionally uses an FSA boat; and
(b) the person intentionally contravenes an Australian regional management measure relating to the use of the boat; and
(c) the boat is on the high seas in an area covered by the regional organisation or arrangement that established the measure, and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 500 penalty units.
(1) A person is guilty of an offence if:
(a) the person intentionally uses an FSA boat for fishing; and
(b) the boat is on the high seas in an area covered by a regional organisation or arrangement involving Australia, and the person is reckless as to that fact.
(2) The offence is punishable on conviction by a fine not more than 500 penalty units.
(3) Subsection (1) does not apply if the fishing is authorised by an authorisation (however described) issued under the law of the country of nationality of the FSA boat.
(4) The only burden of proof that a defendant bears in respect of subsection (3) is the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter in question existed.
(1) The Attorney‑General’s written consent is required before a charge of an offence against this Subdivision can proceed to hearing or determination.
(2) Before granting such a consent, the Attorney‑General must take into account any views expressed by the government of the country of nationality of the FSA boat alleged to be involved in the offence.
(3) Even though the Attorney‑General has not granted such a consent, the absence of consent is not to prevent or delay:
(a) the arrest of the suspected offender or proceedings related to arrest (such as proceedings for the issue and execution of a warrant); or
(b) the laying of a charge against the suspected offender; or
(c) proceedings for the extradition to Australia of the suspected offender; or
(d) proceedings for remanding the suspected offender in custody or on bail.
(4) If the Attorney‑General declines to grant consent, the court in which the suspected offender has been charged with the offence must permanently stay proceedings on the charge.
(5) In any proceedings, an apparently genuine document purporting to be a copy of a written consent granted by the Attorney‑General in accordance with this section will be accepted, in the absence of proof to the contrary, as proof of such consent.
Omit “or subsection 95(5)”, substitute “, subsection 95(5) or section 105C or 105F”.
Omit “or 104”, substitute “, 104, 105A, 105B or 105E”.
After “section 84”, insert “(as it applies of its own force or because of section 87, 87C or 87G)”.
Insert:
(ha) providing for the marking of Australian‑flagged boats in relation to which fishing concessions or scientific permits allowing fishing outside the AFZ are in force; and
After “section 84”, insert “(as it applies of its own force or because of section 87, 87A, 87B, 87C, 87D or 87G)”.
Repeal the heading, substitute:
Add:
Note: See subsection 4(1) (definition of
Fish Stocks Agreement ).
AGREEMENT FOR THE IMPLEMENTATION OF THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA OF 10 DECEMBER 1982 RELATING TO THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
PART I
GENERAL PROVISIONS
1. For the purposes of this Agreement:
“Convention” means the United Nations Convention on the Law of the Sea of 10 December 1982;
“conservation and management measures” means measures to conserve and manage one or more species of living marine resources that are adopted and applied consistent with the relevant rules of international law as reflected in the Convention and this Agreement;
“fish” includes molluscs and crustaceans except those belonging to sedentary species as defined in article 77 of the Convention; and
“arrangement” means a cooperative mechanism established in accordance with the Convention and this Agreement by two or more States for the purpose,
2. (a) “States Parties” means States which have consented to be bound by this Agreement and for which the Agreement is in force.
This Agreement applies
(i) to any entity referred to in article 305, paragraph 1(c), (d) and (e), of the Convention and
(ii) subject to article 47, to any entity referred to as an “international organization” in Annex IX, article 1, of the Convention
which becomes a Party to this Agreement, and to that extent “States Parties” refers to those entities.
3. This Agreement applies
The objective of this Agreement is to ensure the long‑term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention.
1. Unless otherwise provided, this Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction, except that articles 6 and 7 apply also to the conservation and management of such stocks within areas under national jurisdiction, subject to the different legal regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction as provided for in the Convention.
2. In the exercise of its sovereign rights for the purpose of exploring and exploiting, conserving and managing straddling fish stocks and highly migratory fish stocks within areas under national jurisdiction, the coastal State shall apply
3. States shall give due consideration to the respective capacities of developing States to apply articles 5, 6 and 7 within areas under national jurisdiction and their need for assistance as provided for in this Agreement. To this end, Part VII applies
Nothing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention.
PART II
CONSERVATION AND MANAGEMENT OF STRADDLING
FISH STOCKS AND HIGHLY MIGRATORY FISH
STOCKS
In order to conserve and manage straddling fish stocks and highly migratory fish stocks, coastal States and States fishing on the high seas shall, in giving effect to their duty to cooperate in accordance with the Convention:
adopt measures to ensure long‑term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilization;
ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global;
apply the precautionary approach in accordance with article 6;
assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks;
adopt, where necessary, conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened;
minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non‑target species, both fish and non‑fish species, (hereinafter referred to as non‑target species) and impacts on associated or dependent species, in particular endangered species, through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost‑effective fishing gear and techniques;
protect biodiversity in the marine environment;
take measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources;
take into account the interests of artisanal and subsistence fishers;
collect and share, in a timely manner, complete and accurate data concerning fishing activities on,
promote and conduct scientific research and develop appropriate technologies in support of fishery conservation and management; and
implement and enforce conservation and management measures through effective monitoring, control and surveillance.
1. States shall apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment.
2. States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.
3. In implementing the precautionary approach, States shall:
improve decision‑making for fishery resource conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty;
apply the guidelines set out in Annex II and determine, on the basis of the best scientific information available, stock‑specific reference points and the action to be taken if they are exceeded;
take into account,
develop data collection and research programs to assess the impact of fishing on non‑target and associated or dependent species and their environment, and adopt plans which are necessary to ensure the conservation of such species and to protect habitats of special concern.
4. States shall take measures to ensure that, when reference points are approached, they will not be exceeded. In the event that they are exceeded, States shall, without delay, take the action determined under paragraph 3(b) to restore the stocks.
5. Where the status of target stocks or non‑target or associated or dependent species is of concern, States shall subject such stocks and species to enhanced monitoring in order to review their status and the efficacy of conservation and management measures. They shall revise those measures regularly in the light of new information.
6. For new or exploratory fisheries, States shall adopt as soon as possible cautious conservation and management measures, including,
7. If a natural phenomenon has a significant adverse impact on the status of straddling fish stocks or highly migratory fish stocks, States shall adopt conservation and management measures on an emergency basis to ensure that fishing activity does not exacerbate such adverse impact. States shall also adopt such measures on an emergency basis where fishing activity presents a serious threat to the sustainability of such stocks. Measures taken on an emergency basis shall be temporary and shall be based on the best scientific evidence available.
1. Without prejudice to the sovereign rights of coastal States for the purpose of exploring and exploiting, conserving and managing the living marine resources within areas under national jurisdiction as provided for in the Convention, and the right of all States for their nationals to engage in fishing on the high seas in accordance with the Convention:
with respect to straddling fish stocks, the relevant coastal States and the States whose nationals fish for such stocks in the adjacent high seas area shall seek, either directly or through the appropriate mechanisms for cooperation provided for in Part III, to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area;
with respect to highly migratory fish stocks, the relevant coastal States and other States whose nationals fish for such stocks in the region shall cooperate, either directly or through the appropriate mechanisms for cooperation provided for in Part III, with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction.
2. Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks. In determining compatible conservation and management measures, States shall:
take into account the conservation and management measures adopted and applied in accordance with article 61 of the Convention in respect of the same stocks by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures;
take into account previously agreed measures established and applied for the high seas in accordance with the Convention in respect of the same stocks by relevant coastal States and States fishing on the high seas;
take into account previously agreed measures established and applied in accordance with the Convention in respect of the same stocks by a subregional or regional fisheries management organization or arrangement;
take into account the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction;
take into account the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned; and
ensure that such measures do not result in harmful impact on the living marine resources as a whole.
3. In giving effect to their duty to cooperate, States shall make every effort to agree on compatible conservation and management measures within a reasonable period of time.
4. If no agreement can be reached within a reasonable period of time, any of the States concerned may invoke the procedures for the settlement of disputes provided for in Part VIII.
5. Pending agreement on compatible conservation and management measures, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature. In the event that they are unable to agree on such arrangements, any of the States concerned may, for the purpose of obtaining provisional measures, submit the dispute to a court or tribunal in accordance with the procedures for the settlement of disputes provided for in Part VIII.
6. Provisional arrangements or measures entered into or prescribed pursuant to paragraph 5 shall take into account the provisions of this Part, shall have due regard to the rights and obligations of all States concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure.
7. Coastal States shall regularly inform States fishing on the high seas in the subregion or region, either directly or through appropriate subregional or regional fisheries management organizations or arrangements, or through other appropriate means, of the measures they have adopted for straddling fish stocks and highly migratory fish stocks within areas under their national jurisdiction.
8. States fishing on the high seas shall regularly inform other interested States, either directly or through appropriate subregional or regional fisheries management organizations or arrangements, or through other appropriate means, of the measures they have adopted for regulating the activities of vessels flying their flag which fish for such stocks on the high seas.
PART III
MECHANISMS FOR INTERNATIONAL COOPERATION
CONCERNING STRADDLING FISH STOCKS AND
HIGHLY MIGRATORY FISH STOCKS
1. Coastal States and States fishing on the high seas shall, in accordance with the Convention, pursue cooperation in relation to straddling fish stocks and highly migratory fish stocks either directly or through appropriate subregional or regional fisheries management organizations or arrangements, taking into account the specific characteristics of the subregion or region, to ensure effective conservation and management of such stocks.
2. States shall enter into consultations in good faith and without delay, particularly where there is evidence that the straddling fish stocks and highly migratory fish stocks concerned may be under threat of over‑exploitation or where a new fishery is being developed for such stocks. To this end, consultations may be initiated at the request of any interested State with a view to establishing appropriate arrangements to ensure conservation and management of the stocks. Pending agreement on such arrangements, States shall observe the provisions of this Agreement and shall act in good faith and with due regard to the rights, interests and duties of other States.
3. Where a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement. States having a real interest in the fisheries concerned may become members of such organization or participants in such arrangement. The terms of participation in such organization or arrangement shall not preclude such States from membership or participation; nor shall they be applied in a manner which discriminates against any State or group of States having a real interest in the fisheries concerned.
PART VIII
PEACEFUL SETTLEMENT OF DISPUTES
States have the obligation to settle their disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
States shall cooperate in order to prevent disputes. To this end, States shall agree on efficient and expeditious decision‑making procedures within subregional and regional fisheries management organizations and arrangements and shall strengthen existing decision‑making procedures as necessary.
Where a dispute concerns a matter of a technical nature, the States concerned may refer the dispute to an ad hoc expert panel established by them. The panel shall confer with the States concerned and shall endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes.
1. The provisions relating to the settlement of disputes set out in Part XV of the Convention apply
2. The provisions relating to the settlement of disputes set out in Part XV of the Convention apply
3. Any procedure accepted by a State Party to this Agreement and the Convention pursuant to article 287 of the Convention shall apply to the settlement of disputes under this Part, unless that State Party, when signing, ratifying or acceding to this Agreement, or at any time thereafter, has accepted another procedure pursuant to article 287 for the settlement of disputes under this Part.
4. A State Party to this Agreement which is not a Party to the Convention, when signing, ratifying or acceding to this Agreement, or at any time thereafter, shall be free to choose, by means of a written declaration, one or more of the means set out in article 287, paragraph 1, of the Convention for the settlement of disputes under this Part. Article 287 shall apply to such a declaration, as well as to any dispute to which such State is a party which is not covered by a declaration in force. For the purposes of conciliation and arbitration in accordance with Annexes V, VII and VIII to the Convention, such State shall be entitled to nominate conciliators, arbitrators and experts to be included in the lists referred to in Annex V, article 2, Annex VII, article 2, and Annex VIII, article 2, for the settlement of disputes under this Part.
5. Any court or tribunal to which a dispute has been submitted under this Part shall apply the relevant provisions of the Convention, of this Agreement and of any relevant subregional, regional or global fisheries agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law not incompatible with the Convention, with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stocks concerned.
1. Pending the settlement of a dispute in accordance with this Part, the parties to the dispute shall make every effort to enter into provisional arrangements of a practical nature.
2. Without prejudice to article 290 of the Convention, the court or tribunal to which the dispute has been submitted under this Part may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent damage to the stocks in question, as well as in the circumstances referred to in article 7, paragraph 5, and article 16, paragraph 2.
3. A State Party to this Agreement which is not a Party to the Convention may declare that, notwithstanding article 290, paragraph 5, of the Convention, the International Tribunal for the Law of the Sea shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State.
Article 297, paragraph 3, of the Convention applies also to this Agreement.
PART IX
NON‑PARTIES TO THIS AGREEMENT
1. States Parties shall encourage non‑parties to this Agreement to become parties thereto and to adopt laws and regulations consistent with its provisions.
2. States Parties shall take measures consistent with this Agreement and international law to deter the activities of vessels flying the flag of non‑parties which undermine the effective implementation of this Agreement.
PART X
GOOD FAITH AND ABUSE OF RIGHTS
States Parties shall fulfil in good faith the obligations assumed under this Agreement and shall exercise the rights recognized in this Agreement in a manner which would not constitute an abuse of right.
PART XI
RESPONSIBILITY AND LIABILITY
States Parties are liable in accordance with international law for damage or loss attributable to them in regard to this Agreement.
PART XII
REVIEW CONFERENCE
1. Four years after the date of entry into force of this Agreement, the Secretary‑General of the United Nations shall convene a conference with a view to assessing the effectiveness of this Agreement in securing the conservation and management of straddling fish stocks and highly migratory fish stocks. The Secretary‑General shall invite to the conference all States Parties and those States and entities which are entitled to become parties to this Agreement as well as those intergovernmental and non‑governmental organizations entitled to participate as observers.
2. The conference shall review and assess the adequacy of the provisions of this Agreement and, if necessary, propose means of strengthening the substance and methods of implementation of those provisions in order better to address any continuing problems in the conservation and management of straddling fish stocks and highly migratory fish stocks.
PART XIII
FINAL PROVISIONS
This Agreement shall be open for signature by all States and the other entities referred to in article 1, paragraph 2(b), and shall remain open for signature at United Nations Headquarters for twelve months from the fourth of December 1995.
This Agreement is subject to ratification by States and the other entities referred to in article 1, paragraph 2(b). The instruments of ratification shall be deposited with the Secretary‑General of the United Nations.
This Agreement shall remain open for accession by States and the other entities referred to in article 1, paragraph 2(b). The instruments of accession shall be deposited with the Secretary‑General of the United Nations.
1. This Agreement shall enter into force 30 days after the date of deposit of the thirtieth instrument of ratification or accession.
2. For each State or entity which ratifies the Agreement or accedes thereto after the deposit of the thirtieth instrument of ratification or accession, this Agreement shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession.
1. This Agreement shall be applied provisionally by a State or entity which consents to its provisional application by so notifying the depositary in writing. Such provisional application shall become effective from the date of receipt of the notification.
2. Provisional application by a State or entity shall terminate upon the entry into force of this Agreement for that State or entity or upon notification by that State or entity to the depositary in writing of its intention to terminate provisional application.
No reservations or exceptions may be made to this Agreement.
Article 42 does not preclude a State or entity, when signing, ratifying or acceding to this Agreement, from making declarations or statements, however phrased or named, with a view,
1. This Agreement shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Agreement and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Agreement.
2. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Agreement, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Agreement, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Agreement.
3. States Parties intending to conclude an agreement referred to in paragraph 2 shall notify the other States Parties through the depositary of this Agreement of their intention to conclude the agreement and of the modification or suspension for which it provides.
1. A State Party may, by written communication addressed to the Secretary‑General of the United Nations, propose amendments to this Agreement and request the convening of a conference to consider such proposed amendments. The Secretary‑General shall circulate such communication to all States Parties. If, within six months from the date of the circulation of the communication, not less than one half of the States Parties reply favourably to the request, the Secretary‑General shall convene the conference.
2. The decision‑making procedure applicable at the amendment conference convened pursuant to paragraph 1 shall be the same as that applicable at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, unless otherwise decided by the conference. The conference should make every effort to reach agreement on any amendments by way of consensus and there should be no voting on them until all efforts at consensus have been exhausted.
3. Once adopted, amendments to this Agreement shall be open for signature at United Nations Headquarters by States Parties for twelve months from the date of adoption, unless otherwise provided in the amendment itself.
4. Articles 38, 39, 47 and 50 apply to all amendments to this Agreement.
5. Amendments to this Agreement shall enter into force for the States Parties ratifying or acceding to them on the thirtieth day following the deposit of instruments of ratification or accession by two thirds of the States Parties. Thereafter, for each State Party ratifying or acceding to an amendment after the deposit of the required number of such instruments, the amendment shall enter into force on the thirtieth day following the deposit of its instrument of ratification or accession.
6. An amendment may provide that a smaller or a larger number of ratifications or accessions shall be required for its entry into force than are required by this article.
7. A State which becomes a Party to this Agreement after the entry into force of amendments in accordance with paragraph 5 shall, failing an expression of a different intention by that State:
be considered as a Party to this Agreement as so amended; and
be considered as a Party to the unamended Agreement in relation to any State Party not bound by the amendment.
1. A State Party may, by written notification addressed to the Secretary‑General of the United Nations, denounce this Agreement and may indicate its reasons. Failure to indicate reasons shall not affect the validity of the denunciation. The denunciation shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
2. The denunciation shall not in any way affect the duty of any State Party to fulfil any obligation embodied in this Agreement to which it would be subject under international law independently of this Agreement.
1. In cases where an international organization referred to in Annex IX, article 1, of the Convention does not have competence over all the matters governed by this Agreement, Annex IX to the Convention shall apply
article 2, first sentence; and
article 3, paragraph 1.
2. In cases where an international organization referred to in Annex IX, article 1, of the Convention has competence over all the matters governed by this Agreement, the following provisions shall apply to participation by such international organization in this Agreement:
at the time of signature or accession, such international organization shall make a declaration stating:
(i) that it has competence over all the matters governed by this Agreement;
(ii) that, for this reason, its member States shall not become States Parties, except in respect of their territories for which the international organization has no responsibility; and
(iii) that it accepts the rights and obligations of States under this Agreement;
participation of such an international organization shall in no case confer any rights under this Agreement on member States of the international organization;
in the event of a conflict between the obligations of an international organization under this Agreement and its obligations under the agreement establishing the international organization or any acts relating to it, the obligations under this Agreement shall prevail.
1. The Annexes form an integral part of this Agreement and, unless expressly provided otherwise, a reference to this Agreement or to one of its Parts includes a reference to the Annexes relating thereto.
2. The Annexes may be revised from time to time by States Parties. Such revisions shall be based on scientific and technical considerations. Notwithstanding the provisions of article 45, if a revision to an Annex is adopted by consensus at a meeting of States Parties, it shall be incorporated in this Agreement and shall take effect from the date of its adoption or from such other date as may be specified in the revision. If a revision to an Annex is not adopted by consensus at such a meeting, the amendment procedures set out in article 45 shall apply.
The Secretary‑General of the United Nations shall be the depositary of this Agreement and any amendments or revisions thereto.
The Arabic, Chinese, English, French, Russian and Spanish texts of this Agreement are equally authentic.
IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly authorized thereto, have signed this Agreement.
OPENED FOR SIGNATURE at New York, this fourth day of December, one thousand nine hundred and ninety‑five, in a single original, in the Arabic, Chinese, English, French, Russian and Spanish languages.
ANNEX I
STANDARD REQUIREMENTS FOR THE
COLLECTION AND SHARING OF DATA
1. The timely collection, compilation and analysis of data are fundamental to the effective conservation and management of straddling fish stocks and highly migratory fish stocks. To this end, data from fisheries for these stocks on the high seas and those in areas under national jurisdiction are required and should be collected and compiled in such a way as to enable statistically meaningful analysis for the purposes of fishery resource conservation and management. These data include catch and fishing effort statistics and other fishery‑related information, such as vessel‑related and other data for standardizing fishing effort. Data collected should also include information on non‑target and associated or dependent species. All data should be verified to ensure accuracy. Confidentiality of non‑aggregated data shall be maintained. The dissemination of such data shall be subject to the terms on which they have been provided.
2. Assistance, including training as well as financial and technical assistance, shall be provided to developing States in order to build capacity in the field of conservation and management of living marine resources. Assistance should focus on enhancing capacity to implement data collection and verification, observer programs, data analysis and research projects supporting stock assessments. The fullest possible involvement of developing State scientists and managers in conservation and management of straddling fish stocks and highly migratory fish stocks should be promoted.
The following general principles should be considered in defining the parameters for collection, compilation and exchange of data from fishing operations for straddling fish stocks and highly migratory fish stocks:
States should ensure that data are collected from vessels flying their flag on fishing activities according to the operational characteristics of each fishing method (e.g., each individual tow for trawl, each set for long‑line and purse‑seine, each school fished for pole‑and‑line and each day fished for troll) and in sufficient detail to facilitate effective stock assessment;
States should ensure that fishery data are verified through an appropriate system;
States should compile fishery‑related and other supporting scientific data and provide them in an agreed format and in a timely manner to the relevant subregional or regional fisheries management organization or arrangement where one exists. Otherwise, States should cooperate to exchange data either directly or through such other cooperative mechanisms as may be agreed among them;
States should agree, within the framework of subregional or regional fisheries management organizations or arrangements, or otherwise, on the specification of data and the format in which they are to be provided, in accordance with this Annex and taking into account the nature of the stocks and the fisheries for those stocks in the region. Such organizations or arrangements should request non‑members or non‑participants to provide data concerning relevant fishing activities by vessels flying their flag;
such organizations or arrangements shall compile data and make them available in a timely manner and in an agreed format to all interested States under the terms and conditions established by the organization or arrangement; and
scientists of the flag State and from the relevant subregional or regional fisheries management organization or arrangement should analyse the data separately or jointly, as appropriate.
1. States shall collect and make available to the relevant subregional or regional fisheries management organization or arrangement the following types of data in sufficient detail to facilitate effective stock assessment in accordance with agreed procedures:
time series of catch and effort statistics by fishery and fleet;
total catch in number, nominal weight, or both, by species (both target and non‑target) as is appropriate to each fishery. [Nominal weight is defined by the Food and Agriculture Organization of the United Nations as the live‑weight equivalent of the landings];
discard statistics, including estimates where necessary, reported as number or nominal weight by species, as is appropriate to each fishery;
effort statistics appropriate to each fishing method; and
fishing location, date and time fished and other statistics on fishing operations as appropriate.
2. States shall also collect where appropriate and provide to the relevant subregional or regional fisheries management organization or arrangement information to support stock assessment, including:
composition of the catch according to length, weight and sex;
other biological information supporting stock assessments such as information on age, growth, recruitment, distribution and stock identity; and
other relevant research, including surveys of abundance, biomass surveys, hydro‑acoustic surveys, research on environmental factors affecting stock abundance, and oceanographic and ecological studies.
1. States should collect the following types of vessel‑related data for standardizing fleet composition and vessel fishing power and for converting between different measures of effort in the analysis of catch and effort data:
vessel identification, flag and port of registry;
vessel type;
vessel specifications (e.g., material of construction, date built, registered length, gross registered tonnage, power of main engines, hold capacity and catch storage methods); and
fishing gear description (e.g., types, gear specifications and quantity).
2. The flag State will collect the following information:
navigation and position fixing aids;
communication equipment and international radio call sign; and
crew size.
A State shall ensure that vessels flying its flag send to its national fisheries administration and, where agreed, to the relevant subregional or regional fisheries management organization or arrangement, logbook data on catch and effort, including data on fishing operations on the high seas, at sufficiently frequent intervals to meet national requirements and regional and international obligations. Such data shall be transmitted, where necessary, by radio, telex, facsimile or satellite transmission or by other means.
States or, as appropriate, subregional or regional fisheries management organizations or arrangements should establish mechanisms for verifying fishery data, such as:
position verification through vessel monitoring systems;
scientific observer programs to monitor catch, effort, catch composition (target and non‑target) and other details of fishing operations;
vessel trip, landing and transshipment reports; and
port sampling.
1. Data collected by flag States must be shared with other flag States and relevant coastal States through appropriate subregional or regional fisheries management organizations or arrangements. Such organizations or arrangements shall compile data and make them available in a timely manner and in an agreed format to all interested States under the terms and conditions established by the organization or arrangement, while maintaining confidentiality of non‑aggregated data, and should, to the extent feasible, develop database systems which provide efficient access to data.
2. At the global level, collection and dissemination of data should be effected through the Food and Agriculture Organization of the United Nations. Where a subregional or regional fisheries management organization or arrangement does not exist, that organization may also do the same at the subregional or regional level by arrangement with the States concerned.
ANNEX II
GUIDELINES FOR THE APPLICATION OF PRECAUTIONARY REFERENCE POINTS IN CONSERVATION AND MANAGEMENT
OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY
FISH STOCKS
1. A precautionary reference point is an estimated value derived through an agreed scientific procedure, which corresponds to the state of the resource and of the fishery, and which can be used as a guide for fisheries management.
2. Two types of precautionary reference points should be used: conservation, or limit, reference points and management, or target, reference points. Limit reference points set boundaries which are intended to constrain harvesting within safe biological limits within which the stocks can produce maximum sustainable yield. Target reference points are intended to meet management objectives.
3. Precautionary reference points should be stock‑specific to account,
4. Management strategies shall seek to maintain or restore populations of harvested stocks, and where necessary associated or dependent species, at levels consistent with previously agreed precautionary reference points. Such reference points shall be used to trigger pre‑agreed conservation and management action. Management strategies shall include measures which can be implemented when precautionary reference points are approached.
5. Fishery management strategies shall ensure that the risk of exceeding limit reference points is very low. If a stock falls below a limit reference point or is at risk of falling below such a reference point, conservation and management action should be initiated to facilitate stock recovery. Fishery management strategies shall ensure that target reference points are not exceeded on average.
6. When information for determining reference points for a fishery is poor or absent, provisional reference points shall be set. Provisional reference points may be established by analogy to similar and better‑known stocks. In such situations, the fishery shall be subject to enhanced monitoring so as to enable revision of provisional reference points as improved information becomes available.
7. The fishing mortality rate which generates maximum sustainable yield should be regarded as a minimum standard for limit reference points. For stocks which are not overfished, fishery management strategies shall ensure that fishing mortality does not exceed that which corresponds to maximum sustainable yield, and that the biomass does not fall below a predefined threshold. For overfished stocks, the biomass which would produce maximum sustainable yield can serve as a rebuilding target.
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